IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP: HON. JUSTICE O.O. OYEWUMI

 

 DATED: 7TH FEBUARY, 2023                          SUIT NO NICN/ABJ/198/2021

           

BETWEEN

MR KINGSLEY STANLEY NKWOCHA                                     CLAIMANT

AND

LEADERSHIP GROUP LIMITED                                              DEFENDANT

                                                                                                                                             

    

REPRESENTATIONS

Isaac Udoka Esq with B.O Ukwueze Esq. for the claimant.

Ajike Ukonu Esq, G.C Iwuanyanwu Esq , John Kyrian Etuk Esq , K.I. Kantiyok Esq and Elizabeth Akinniyi Esq for the defendant.                                                                                             

                                                                              

 

                                                            JUDGMENT

1.      By a General Form of Complaint, filed by the claimant dated 16th August, 2021 and amended on 7th December, 2021 praying the Court for the following reliefs;

1. The sum of N10,500,175.33. Ten Million Five Naira, Thirty Three Kobo only representing, owed salaries and emoluments in the cause of his employment.

2. 15% interest from the date of judgment until the judgment sum is fully paid.

3. The cost of this action.

2.      It is the claimant’s case that he was employed by the defendant as a proof reader on the 20th day of April, 2006 and grew through the ranks to become a Director in the defendant. He averred that while he was in the service of the defendant, his salaries and emoluments were paid in piece meal and most times, it wasn’t paid at all, and despite this, he continued working for the defendant until the 8th of January, 2018 when he finally resigned from the service of the defendant. He stated that his salaries from 2015 until he resigned in January 2018 was paid into his Access Bank Account number 0695031925. He continued that his total outstanding salary from January, 2015 to December, 2017 was N7,698,775.33. (Seven Million, Six Hundred and Seventy Five Naira, Thirty Three kobo). He further averred that before he resigned from the service of the defendant, on 8th of January, 2018, his cumulated salary arrears, pension and leave allowances was N10,500,175.33(Ten Million, Five Hundred Thousand, One Hundred and Seventy Five Naira) only. He averred further that when the defendant failed to pay his entitlement he wrote a letter of demand and he paid the sum of N500,000 to his lawyer for the prosecution of this case.

 

3.      The defendant in response vide its amended statement of defence averred that it does not owe the claimant the amount he is alleging and that it was not aware how and where the claimant came about all the figures generated by the claimant as outstanding salaries, leave allowances and pension allowance. It averred further that apart from the salaries paid to the claimant’s account, some of the claimant’s salaries were paid over the counter. It went on that it is because of the relationship the claimant enjoyed with its late Chairman that on several occasions the claimant would be allowed to take the money collected from clients for the paid advertisement as part of his salary. It also averred that leave allowances are paid upon request and approval of leave and that the claimant was paid his leave allowance requested for and was granted approval for leave in 2010, 2011, 2013 and 2016 and his leave allowances were paid together with his salaries and that the claimant did not make any application to embark on leave in 2012, 2014, 2015 and 2017 and therefore not entitle to leave allowance for the said periods.

 

4.      On the 11th May 2022, claimant opened his case and testifed for himself as CW by adopting his written statement on oath as his oral evidence. Documents tendered through him were admitted in evidence and marked as Exhibits S-S5.He was subsequently cross examined by the learned counsel on behalf of the defendant. Afterwards, claimant’s case was closed. On the 12th May 2022 the defendant opened its case and called one Cyril Akinola as DW who adopted his written statement on oath as his oral evidence he tendered documents in evidence which were admitted and marked as Exhibits C- C1 He was subsequently cross examined by the claimant’s counsel and during which exhibit C2 was tendered through him by learned Claimant counsel. The matter was adjourned for adoption of final written address.

 

5.       On the 12th August 2022, counsel on behalf of the claimant filed his final written address wherein he formulated a sole issue for the Court’s determination thus:

Whether by the preponderance evidence, the claimant has proven his case to be entitled to the reliefs sought

6.      Learned counsel on behalf of the claimant submitted that it has been established that the defendant is indebted to the claimant to the tune of N10,500,175.33 as his outstanding salaries, pension and leave allowances. He submitted that it is the law that the burden of proof shifts from one  party to the other, he noted that exhibit S4 shows how much the claimant received from the defendant and that the onus is now on the defendant to show that it made payment different from what is contained in the said exhibit S4.He cited  in support Section 133 of the Evidence Act, 2011 and the case of  Nduul v. Wayo &Ors [2018] LPELR-4515(SC). It was also submitted by counsel that the defendant has failed to discharge the burden of proof shifted to. He noted that DW1 under cross examination admitted that owing him the sum of N2,043,093.75 and produced a document, Exhibit C2 to prove same. He also noted that the defendant concocted the said exhibit for the sole purpose of misleading this Court as the document was brought to Court after the defendant had admitted under cross examination that they are indebted to the claimant but claimed that he did not know how much the debt was. He also noted that the said Exhibit C2 is in contradiction with Exhibit S4 which is N130,821.57 with outstanding balance of N47,500.00, while for the month of November 2017, claimant received the sum of N169,531.25, he further noted that the concocted exhibit shows that the sum of N339,062.50 is unpaid.

 

7.      Learned counsel noted that the concocted exhibit C2 only covers 2015 to 2017 which clearly shows that the document was made during the pendency of this suit and manipulated to deceive this, Court. Counsel also noted that the defendant pleaded in paragraphs 10 and 12 of their amended statement of defense the evidence of cash receipts by the claimant but failed to produce such document during trial, he submitted that the law is clear that oral evidence cannot take the place of documentary evidence. He cited in support the case of BFI Group Corporation v. BPE [2012] LPELR-9339(SC) and; Moral v. Okwuayanga [1990] 1NWLR (PT.125) 225@232. Counsel submitted further that no amount of  oral evidence would be allowed to change or contradict Exhibit S4 as the defendant who wants the Court to believe that the claimant collected salaries through the counter failed to provide any voucher or documents to show such payments apart from the ones paid to him through his bank account, he went further to note that  DW1 during cross examination admitted that anyone whose salary got paid over the counter or cash must append his signature evincing the receipt of  such payment. He cited Section 131 of the Evidence Act, 2011. In conclusion, learned counsel to the claimant submitted that the claimant has proved his case upon preponderance of evidence and therefore urge the Court to grant the claimant’s relief sought.

 

8.      Learned counsel on behalf of the defendant filed the defendant’s final written address on the 16th August, 2022 wherein he formulated a sole issue for the Court’s determination thus:

Whether the claimant has proved his case to be entitled to the reliefs sought”.

9.      It is the learned counsel’s submission that the claimant prayed for the sum of N 10,500,175.33 (Ten million, five hundred thousand, one hundred and seventy five naira, thirty three kobo) only in the endorsement of his Complaint comprising of his salary arrears, leave allowance and pension contribution. He stated that it is elementary that he who assert must prove as a claimant who instituted an action is expected to prove with credible evidence all the facts necessary to establish his case. He cited in support Section 137 of the Evidence Act 2011; Mogbo v. Onwukwe [2021] LPELR-5614 (CA). He however noted that the claimant in paragraph 11 of his witness statement on oath computed the grand total of the defendant’s indebtedness to be the sum of N9,581,400 (Nine million, five hundred eighty one thousand, four hundred naira) only. While he noted that the claimant in paragraph 10 of his statement of facts and witness statement on oath stated that his total outstanding salary is N7,698,775.33, while paragraph 11 of his statement of facts and witness statement on oath specifically the table showing “Statement of outstanding salary for Stanley Nkwocha” which he computed to be the sum of N3,587.902.08.

 

10. Counsel noted that on the other hand, the claimant’s letter titled “Final Notice/Request of payment and intent to sue” shows the defendant’s indebtedness to be the sum of N12,000.000.00 or more comprising N6 million. He submitted that the law is trite that he who asserts the affirmative has the duty to prove same as there is no duty generally on a party to prove the negative. He cited the case of Abdulganiyu v. Adekeye & Anor [2012] LPELR-9250 (CA). He also submitted that the law is trite that where a plaintiff fails to prove the ground or basis upon which he or she seeks the reliefs in a case, then the claim has failed and must be dismissed. He cited in support the case of Mba v. Mba [2013] LPELR-21206 (CA). He maintained that the claimant’s pleadings and the evidence before this Court is inconsistent and as such should be disregarded. He relied on the case French &Ors v. Omonde & Ors [2021] LPELR-56061 (CA).

 

11. Learned counsel argued that the claimant during cross examination testified that apart from bank payment, he was also paid through cash and deductions he made from monies he received from clients for advertisement. Counsel also submitted that every leave applied by the claimant and was approved, he was paid allowance for the said leave and that was paid alongside his salaries. He also submitted that the claimant’s pension contributions were not paid into his account and that the claimant did not tender any statement of account showing that his pension contributions were not paid. He noted that during cross examination, the Claimant testified that a retired savings account was opened for him but did not think he was to tender the statement of the said account which he claimed that were no remittances to it. He also submitted that the law is settled that in a civil proceeding, the general onus is on the claimant to prove to the satisfaction of the Court the assertions made in the pleadings of the contentions upon which he meets his case. He commended to the Court the case of Obasanjo Farms (Nig) Ltd v. Muhammed [2016] LPELR-40199 (CA). In conclusion, learned counsel submitted that claimant has the onus of proving his case by preponderance of evidence and not even the failure of the defendant to prove or refusal to testify can alleviate the primary burden on the claimant. He relied on the case of Umeojiako v. Ezenamuo [1990] 1 NWLR (Pt.126) 253. He therefore stated that the claimant has failed to prove his case and as such not entitle to the reliefs sought.

 

12. Learned counsel ton behalf of the claimant filed a reply on point of law on 24th August, 2022 where he replied that there is no inconsistency whatsoever in the claimant’s claim and that the only claim before the Court is the amended statement of facts which clearly  shows the sum of N10,500,175.33,noting that the total sum in salary alone owed is N7,698,775.33,he submitted that it is the break downs that the defendant misinterpreted mentioned in a letter of demand as a claimant is at liberty to abandon part of the claim stated in such letter or increase the sum as long as there is evidence to substantiate such claim. He relied on the cases of Rotimi &Ors v. Macgregor [1974] LPELR-2957(SC); Jatau v. Ahmed & Ors [2003] LPELR-15979(SC). He therefore urge the Court to discountenance the defendant’s arguments.

 

13. It is the further submission of counsel, that the issue of salary has been extensively addressed in the claimant’s final written address as he has established clearly through pleadings, exhibits and testimony before this Court and DW1 equally admitted under cross examination owing him the sum of N2,043,093.75 and produce a document in prove of same which was tendered as exhibit. He noted that the defendant pleaded in paragraph 11 and 13 of their amended statement of defense the evidence of cash receipts by the claimant but never attached such documents neither did they produce them during the trial. He also noted that the defendant having records of when and how salaries of his employees were paid should provide such information to aid the Court in its findings as parties are bound by their pleadings. He cited the case of Ozomgbachi v. Amadi & Ors [2018] LPELR-45152(SC)

 

14. Learned counsel also submitted regarding the claimant’s leave allowance and pension that he never received any leave allowance from the defendant and the defendant never produced evidence showing that they paid any part of the claimant’s allowance and how it was paid. He noted that the defendant admitted under cross examination that it has been remitting the pension deductions as the law is trite that that admitted facts need no prove. He cited Section 123 of the Evidence Act 2011.  Learned counsel further submitted regarding his Access Bank statement of account that the defendant in his evaluation of evidence made reference to Section 90 (1)(e) of the Evidence Act arguing that proper foundation was not laid before tendering the photocopy of the bank statement, he stated that the record of the Court will show that proper foundation was laid and all the procedures envisage under the said section were complied with as it is settled law that the test of admissibility of documents is its relevancy. He cited the case of Oguejiofor v. Access Bank [2020] LPELR-495839(CA). In conclusion learned counsel urged the Court to grant the reliefs sought by the claimant and discountenance the defense of the defendant as lacking in merit and enter judgment in favor of the claimant.

 

15. Having given a careful consideration to the facts of this case as well as the documents tendered, the submission of learned counsel for the parties; it is in my calm view that the issue that requires the Court’s consideration for the just determination of this suit is whether or not the claimant has proven his case to be entitled to the reliefs sought.

 

16.  Before addressing the merits of this case let me talk about one anomaly in the amended statement of defence filed by the defendant in this case. Pleadings are averred facts in numbered paragraphs which parties rely on to present their case so that the adverse party is not taken by surprise. See ; Odom & Ors v. PDP & Ors [2015]LPELR-24351(SC)1@47-48, Para F; Lanlehin v. Akanbi & Ors [2015]LPELR-42147(CA)1@30 ,Paras E; Izunaso & Anor v. Uzodinma [2015]LPELR-41835(CA)1@26, Para A and PDP v. INEC & Ors [2012]LPELR-9724(SC)1@30, Para B. Thus, a party’s pleading must be numbered in paragraphs. However, contrary to this, the defendant’s amended statement of defence were left unnumbered but indicated with dots which is not the accepted practice and norm. The defendant has now passed on the Court the unnecessary burden of numbering the paragraphs of the amended statement of defence. This same trend was noticed with the statement on oath which also ought to be numbered in paragraphs. The said amended statement of defence is thus numbered paragraphs 1 to 22 while the further witness statement on oath is numbered paragraphs 1-26. This worrisome attitude of the defendant should not be encouraged as parties especially their counsel is supposed to make the work of the Court less tasking and not to over-burden it. It was equally noticed that the pronoun ‘he’ was in the amended statement of defence constantly used for the defendant who is not a natural person but an artificial one. Counsel as a learned Professional should know better and portray his expertise in the handling of his case.

 

17. That being said, Claimant in this case is simply claiming for his outstanding salaries, leave allowances and unremitted pensions. The law is of common that claims of this nature is in the realm of special damages which must be specifically pleaded and strictly proved. See the case of Essien v. Samuel & Ors [2020] LPELR- 49724CA; Ibrahim & Ors v. Obaje [2017] LPELR- 43749SC; A.T.E Co. Ltd v. Military Gov. Ogun State [2009] 15 NWLR (Pt.1163)26. Where a party’s claims are monetary in nature, the burden is on him to prove the monetary claim to the last kobo. He has to do this by leading credible, cogent and verifiable evidence, most of the time by documents.  Claimant vide paragraph 10 of the amended statement of facts averred that his total outstanding salary from January, 2015 to December 2017 is N7,698,775.33 (Seven Million, Six hundred and Ninety Eight thousand, seven hundred and seventy five Naira, Thirty three Kobo). The defendant vide paragraph 14 of the amended statement of defence averred that it denies strongly paragraph 10 of the Claimant’s statement of facts and puts him to strictest proof of same. Although, the defendant has equally averred in paragraph 9 of the amended statement of defence which was meant to respond to a different paragraph of the amended statement of facts that it did not know how Claimant came about all the figures generated by him as outstanding salaries, leave allowance and pension allowance. The Claimant in this case gave a breakdown of how he came by the sum claimed as arrears of salaries in paragraph 11 of the amended statement of facts and equally tendered his Access Bank Statement of Account covering January 2015 to 24th November 2021 herein as exhibit S4. In the table in paragraph 11 of the amended statement of facts Claimant gave a breakdown showing his net salary at different times ranging from N150,000 to N175,000 to N225, 000, N250,000 and N350,000. Claimant in this case tendered Exhibit S1 which contains his letter of appointment as Director MDAs, letter of promotion dated 24th November 2015 and letter of Promotion as Acting Managing Director dated September 6 2017. Of all these documents only, one shows Claimant’s salary per time and that is the letter of Promotion dated November 24th, 2015 which clearly states that Claimant’s annual salary would be N2,700,000 per annum and which promotion is effective from 1st December 2015.  If my knowledge of mathematics serves me right that is N225,000 per month. Clearly this supports Claimant’s claim of N225000 net salary from December 2015 to June 2016 as seen on the table in paragraph 11 of the amended statement of facts. I do not lose sight of the fact that although there is no other exhibit tendered by Claimant or anyone which supports the other sums claimed as monthly net salary at the relevant period, there are however documents in the Court’s file /record which support the other sums though they are not exhibits. Some of these documents were attached to the originating process while some were filed as part of the amended statement of facts in this case as part of documents to be relied on by the Claimant. They are the only one that can aid the Court’s resolution of the issue at hand. In the case of Araraume v. YPP [2021] LPELR-54182 (CA)1@16, Para C the Court held thus; “A Court is entitled to look at its file suo motu, and make use of any document which is relevant to the issue arising for determination, whilst writing its Judgment or Ruling. This includes record of daily proceedings, processes filed and even administrative endorsements or actions of the registry staff in respect of the case. See GABRIEL SUSWAM VS. F.R.N & ANR. (2020) LPELR - 49524 (CA) AND FUMUDOH VS ABORO (1991) 9 NWLR (PT. 214) 210 AT 229” [Emphasis mine] See also; Oladapo v. State [2020] LPELR-(SC)1@10-12, Para F; Eromosele v. FRN [2018] LPELR-43851(CA)1@13, Para A; Mainstreet Bank Securities v. Okoha [2018] LPELR-49136. The above is usually resorted to where it is the last resort of the Court in the interest of justice in resolving the issues before it. See Iliyasu v. Ibrahim & Ors [2019]LPELR-48218(CA)1@43, Para B. It is germane for me to state that facts were pleaded in respect of these documents, they are thus relevant to the facts in issue. At page 28 of the record is a letter of promotion dated June 20, 2013 showing that Claimant’s salary per month is N150,000 and same takes immediate effect which supports Claimant’s claim to the salary of N150,000 from January 2015 to July 2015. At page 158 of the record are internal memo showing that Claimant has been appointed in acting capacity as Editor Leadership Weekend with a monthly pay of N175,000 effective from August 2015. This clearly supports Claimant’s claim to monthly salary of N175,000 from August 2015 to November 2015. At page 161 of the record is a letter dated July 8, 2016 showing Claimant’s appointment as Managing Editor, Business and Strategy with effect from July 8, 2016 and which letter states that Claimant’s new pay by virtue of the new appointment is N3,000,000 per annum payable monthly. In my little knowledge of mathematic that is at the monthly pay of N250, 000. This clearly supports Claimant’s claim to the sum of N250,000 monthly from July 2016 to March 2017. In the same vein, at page 163 is a document titled memo dated August 12, 2017 which states that in line with Claimant’s new position as Director MDAs (which appointment is shown by the first document that makes up exhibit S1 and which position Claimant held till he resigned according to the unchallenged averments in paragraph 5 of the amended statement of facts) his salary should be adjusted and raised to the sum of N350,000 with effect from April 2017. This also clearly supports Claimant’s claim to monthly salary of N350,000 from April 2017 to December 2017. In fact, all these documents when put together and juxtaposed with exhibit S1 clearly show that Claimant’s claims to various net salary at different times is in sequence.

 

18. Claimant in this case has tendered exhibit S4 to show that he was not paid as averred in paragraph 11 of the amended statement of facts. I am mindful of the submission of learned counsel on behalf of the defendant in paragraph 2.20 to 2.22 of the final written address that exhibit S4 is inadmissible for not meeting the requirement of Section 90 (1) (e) of the Evidence Act, 2011 (hereinafter referred to as EA). Now, Section 89 of the EA provides thus; 89. Secondary evidence may be given of the existence, condition and contents of a document when -

(h) the document is an entry in a banker's book.

Section 90(1) (e) of the EA goes further to provide thus;

90 (1) The secondary evidence admissible in respect of the original document referred to in the several paragraphs of Section 89 is as follows:

(e) in paragraph (h), the copies cannot be received as evidence unless it is first proved that-

(i) the book in which the entries copies were made was at the time of making one of the ordinary books of the bank,

(ii) the entry was made in the usual and ordinary course of business,

(iii) the book is in the control and custody of the bank, which proof may be given orally or by affidavit by an officer of the bank, and

(iv) The copy has been examined with the original entry and is correct, which proof must be given by some person who has examined the copy with the original entry, and may be given orally or by affidavit."

With particular reference to Section 89 (h) and 90(1) (e), copies of entries in banker's books are admissible in evidence under certain conditions. The fulfillment of that condition shall be by oral or affidavit evidence showing that the Exhibits are extracts from a Banker's book, kept by the banker and that the figures copied out had been compared with the original and found to be correct.

19. In considering the admissibility of entries in books of or statements of account, Sections 51, 84, 89 and 90 of the Evidence Act, 2011 are relevant. Section 51 of the Act makes admissible entries in books of account or electronic records regularly kept in the course of business admissible whenever they refer to a matter into which the Court has to inquire. However, the same Section provides that such statements alone shall not be sufficient evidence to charge any person with liability. Under Section 89 (h), secondary evidence of the existence, condition or contents of an entry in a banker's book is also admissible. The admissibility of such an entry is, however, subject to the fulfillment of the conditions stipulated under Section 90(1) (e). Section 84 allows for the admissibility of a statement contained in a document produced by a computer, banking practices having emerged from the days of parchment and weighty paper and thus entries in "account books" to computer or electronic records. It follows therefore that all statements of accounts emanating from banks these days are invariably computer generated.  See the case of Elias v. FRN & Ors [2016] LPELR-40797(CA)1@63-67, Para D. In fact, the apex Court in a recent case reported as A.G Fed. v. Anuebunwa [2022]14 NWLR (Pt 1850)211@270, Paras F-G, Paras G-H, Ogunwumiju JSC held that it is the algorithm or data imputed by a bank officer into the bank’s data base that generates the various information on the statement of account of a customer. Thus, the bank statement is a computer generated document which has to be certified by the officer to ensure that no one illegally or without authorization tampered with the source data as officially imputed in the computer. Also, the certification must include that the computer was operational or in good working order when the document was generated. It is thus clear that a statement of account is more of computer-generated evidence than an entry.

 

20. It is trite law that there are certain types of evidence, such as hearsay and unstamped and unregistered documents, which are inadmissible per se and which cannot form the basis for a decision. An objection to these may be taken at any stage of a trial by any of the parties or at the instance of the Court, or even on appeal. However, Section 84 creates an exception wherein it makes certain documents admissible under certain condition that is upon the fulfilment of certification either by oral evidence or by written certification pursuant to a certificate being issued. Thus, a Computer generated evidence unlike some categories of evidence is not rendered inadmissible but admissible on the fulfilment of the conditions in Section 84 (2). The proceedings of the Court on the 11th day of May, 2022, prior to tendering the receipt of the evidence shows that learned defence counsel stated emphatically that he had no objection to the exhibits tendered. It remains a cardinal rule of evidence and practice in civil and criminal cases that an objection to the admissibility of a document sought to be tendered in evidence is immediately taken when the document is offered in evidence. It is part of the inviolate rule that where objection has not been raised by the opposing party to the reception in evidence of a document, the document would be admitted and the opposing party cannot afterward be heard, except where the law specifically renders the document inadmissible. See; Orji v. FRN [2019]LPELR-46534(SC)1@13-14, Paras E-E and Akonjom & Anor v. Ekom & Ors [2019]LPELR-49093(CA)1@26-29, Para E. The said statement of account is not rendered inadmissible by all means but on the fulfilment of some conditions. In the case of First Inland Bank v. Craft 2000 Ltd & Anor [2011] LPELR- 4167 (CA), Aka’ahs JCA later JSC held thus; “If a party acquiesces on the admissibility of a document on the fulfillment of any precondition, he cannot be heard that the conditions precedent was not fulfilled before it was admitted. It is only documents which are inadmissible under any circumstance that can be expunged on appeal if no objection was taken on its admissibility.” See also Olukade v. Alade [1976] 1 NLR 67. The effect of this is that where the evidence is one which is, by law admissible under certain conditions, then since the opposite party failed to object to its admissibility when it was being tendered or by implication consented to its admissibility (although the conditions precedent have not been shown to have been fulfilled) it cannot be allowed to raise the objection later. The defendant having failed to raise the objection to exhibit S4 on the ground that the conditions for its admissibility has not been met is deemed to have consented to the improper admission and thus estopped at this stage from raising any dust about it, Consequently, Exhibit S4 still forms part of the record.

 

21. According to Claimant his outstanding salary which he is being owed by the defendant is N7,698,775.33 and as reasoned supra, Claimant in support of this tendered exhibit S4.  The breakdown of the sum claimed as arrears of salaries has been done by Claimant. I have perused exhibit S4 and it is clear just as particularized by Claimant and I find that its content supports the breakdown given by the Claimant. The only one that seem contradictory to exhibit S4 is the September and October, 2015 salary claimed by Claimant because on the face of exhibit S4 Claimant was paid the sum of N130,821.57 on 16th October, 2015. However whatever confusion created has been cleared by DW when he stated under cross examination that sometimes workers’ salaries are not paid at the end of the month but in the next month due to non-availability of funds and though the said sum N130,821.57 was paid in October, 2015, it was meant for Claimant’s salary in September, 2015. I am mindful of the position of learned counsel on behalf of the defendant in paragraph 4.4 to 4.10 that there are inconsistencies in the amount claimed by Claimant. Learned counsel submitted that Claimant in paragraph 11 of his amended statement of facts computed his total outstanding indebtedness as N9,581,400 while in paragraph 10 of the statement of facts he claimed outstanding salary in the sum of N7,698,775.33 and that Claimant in the table computed his total salary as N3,587, 902.08. I must say that learned defence counsel clearly did not understand the pleadings of Claimant which in my view is unambiguous. Claimant specifically vide paragraph 10 of his amended statement of facts and statement on oath averred and stated categorically that his outstanding salaries from January, 2015 to December, 2017 is the sum of N7,698,775.33. He averred further that the total indebtedness of the defendant to him which comprises of salary arrears, pension and leave allowance is N10, 500,175.33. Claimant then went further to give the particulars of the sum claimed as arrears of salaries, leave allowance and pension. It is clear to any one from the table that Claimant did a breakdown of his salary arrears year by year. For the year 2015 the table clearly shows (as seen on page 144 of the record) that claimant’s arrears of salaries are summed up to be N1,457,826.38 while that of 2016 is N2 653,046.87 and that of 2017 put at N3, 587,902.08. The addition of these sums to my mind clearly gives the sum of N7,698,775.33 which claimant claims as his arrears of salaries in paragraph 10 of the amended statement of facts. Learned counsel clearly did not understand the table showing breakdown of Claimant’s indebtedness. The table itself shows that the sum of N3,587,902.08 is the total of claimant’s alleged arrears of salaries for the year 2017 and not the total sum of all the outstanding salaries. The last part of page 144 of the record and page 145 of the record speak for themselves and I do not see any inconsistencies in the sums Claimed by Claimant as outstanding salaries contrary to what learned counsel would want this Court to believe. The law allows the Court to do its own calculations based on the particulars given and arrive at its own accurate calculations of the special damages. In the case of Benin Rubber Producers Cooperative Marketing Union Ltd v. Ojo & Anor [1997]LPELR-772(SC)1@32, Para A, the apex Court per Iguh JSC held thus; “Strictly speaking, any claim for loss of  earnings is a claim in special damages in the sense that full particulars must be given by the plaintiff in his pleadings of his rate of earning and of such  other facts as may be necessary to enable the Court to calculate as best and as accurately as it can, the actual amount of the plaintiff's loss. See Ilkiw v. Samuels and ors (1963) 1 WLR 991.” See also R.C. Nig Ltd v. Edomwonyi [2002]LPELR-6067(CA)1@27, Para C. From the table, addition of the sums claimed as outstanding salaries for 2015, 2016 and 2017 together with the sums claimed as unremitted pension and leave allowances if my knowledge of mathematics does not fail me gives a total of the sum of N10, 500,175.33 which is the total sum claimed by Claimant as his outstanding salaries and not the sum of N9,581,400 written as the grand total at the table in paragraph 11 of the amended statement of facts which this Court takes as human error. This is because a mere addition of all the sums claimed clearly shows that the grand total of N9,581,400 computed on the table is a function of human error as the addition of those sums clearly give N10, 500,175.33 which is the sum claimed by Claimant at paragraph 11 of his Amended Statement of Facts in this case.

 

22. The learned counsel on behalf of the defendant also submitted in the final written address of the defendant that the inconsistency in the sum claimed in this case and the amount quoted on the letter of demand written by Claimant which is part of exhibit S3 is fatal to the case of Claimant. Ordinarily, this inconsistency should have had an effect on the Claimant’s case but then a perusal of Claimant’s letter of demand clearly shows that the sums therein were clearly a product of estimation. His claims before the Court are clearly particularized and that is of more concern to the Court than the estimate in the letter. Besides, the Court is mindful of the fact that DW while under cross examination on the 12th day of May, 2022 admitted that the defendant was owing the Claimant but that he was not sure of the amount. Specifically, the following question was asked and answer was given by the DW

      Q; Tell this Court as the Chief Accountant of the Company how much do you owe the Claimant?

     A: I cannot be specific but I know we are owing the Claimant.

The effect of the above testimony of DW is that the defendant is actually indebted to the Claimant but that he is not certain of the amount of the indebtedness, how convenient for an Accountant of a Company to say he does not know the indebtedness of the Company to the Claimant. The law is trite that an admission in favour of an opposite party made ante litem motan constitutes an admission against the interest of a party. See; Offodile v. Offodile [2019] 16 NWLR (Pt. 1989) 189@ 211; Ejimadu v. Delta Freeze Limited [2007] 13 NWLR (Pt. 1050) 96@ 110; Chief Falade Onisaodu & Anor. v. Chief Asunmo Elewuju & Anor. [2006] 13 NWLR (Pt. 998) 517 @529-530, Paras H-A and; Kamalu v Umunna [1997] 5 NWLR (Pt. 505)321@337, Para G. As I have already pointed out, the evidence of D.W, called by the defendant is to the effect that the defendant is actually indebted to the Claimant and this in my view strengthened the Claimant's case. This was an admission against the interest of the defendant. The said admission against interest is relevant and admissible evidence. It is pertinent to state here that the defendant did not treat its witness DW as a hostile witness. In such a situation the evidence must be treated as an admission upon which the Claimant is entitled to rely as further reinforcement of his claim. Thus, it is deemed proved that the defendant is indebted to the Claimant. The issue therefore goes to how much the defendant owes the Claimant which is to be considered hereafter.

23. Ordinarily, it is the duty of the claimant who asserted the indebtedness of the defendant to prove it. That is in tune with the trite position of the law that he who asserts must prove. See Section 131 of the EA. and the cases of Christian v. Umara& Anor [2021 ]LPELR-53242 (CA)1@8, Para C and  Dasuki v. FRN & Ors [2018] 10 NWLR (Pt 1627) 7 NWLR (Pt. 1618) 366. However, the defendant having admitted liability bears the burden to prove that it has liquidated its indebtedness to the Claimant. The position of law is settled that the burden is on a debtor to show that he has paid off the amount against him if he denies indebtedness. Mere denial of indebtedness is untenable in law, a defendant must state why he is not indebted in full or in part. See; Sanusi Brothers (Nigeria) Ltd v. Cotia C.E.I.S.A. [2000] 11 NWLR (Pt. 679) 566. It is thus in my humble view that the burden shifts to the defendant who has admitted indebtedness to prove the extent of its liability. This view is further reinforced by the case of Rangaza v. Microplastic Co. Ltd [2013]LPELR-20303(CA)1@13-14, Para E-A; where the Court per Aboki JCA (later JSC now Rtd); “In Mat Holdings Ltd vs. UBA (2003) 11 FR 66 the Court held that; "It is trite that a party who has admitted indebtedness to the other has duty to amply demonstrate to the trial court how the indebtedness admitted was liquidated." Also, in Akalonu vs. Omokaro 10 FR 12, the Court held that; "The burden of proof in all cases of indebtedness is on the defendant who admitted being indebted to the plaintiff. It is his duty to show that such obligation has been discharged.” The defendant in this case after admission of indebtedness by DW was ordered by the Court to produce the evidence showing its indebtedness. Pursuant to this, DW produced a document marked and admitted as exhibit C2 which is a sheet of paper titled final entitlement Kingsley Stanley Nkwocha wherein it stated that the defendant is only indebted to the claimant in the sum of N2,043,093.75. 

 

24. I do not lose sight of the fact averred by defendant in paragraph 11 of the amended statement of defence that apart from the salaries paid to Claimant via his bank account, some of Claimant’s salaries were paid over the counter via cash and the defendant pleaded therein that it shall rely on evidence of cash payment of the salary over the counter. This fact was equally contained in paragraph 14 of the further written statement on oath of DW. The Claimant vide paragraph 2 of the Reply to the amended statement of defence contended that paragraph 11 referred to above is false and that it is the defendant’s policy to pay salaries to its employees through bank accounts and that he cannot recollect receiving cash payments as salary and thus puts the defendant to strict proof. However, Claimant while under cross examination on the 11th day of May 2022 admitted that sometimes he is paid his salaries in cash which shows that cash payment of salaries is part of the policies of the defendant contrary to Claimant’s assertion in his Reply above.

 

25. As reasoned supra, the onus is on the defendant to prove that it has liquidated the indebtedness having admitted owing Claimant. DW under cross examination stated that payment were made in respect of the periods in exhibit C2 without a figure into the Claimant’s bank account. How then will the Court know the exact indebtedness if some payments were made without figures into Claimant’s account? DW also stated further that he cannot tell the Court when the cash or bank payments were made. It is worthy of note that it was admitted by DW under cross examination that the documents showing receipts of cash are missing because of the defendant’s movement and that exhibit C2 is the only document in the archive relating to the Claimant. This Court is a Court facts and evidence and not of speculations. The best evidence rule, states that when a party wishes to rely on the contents of a document, the document itself, either in its original or secondary nature, where permissible in the latter case should be put in evidence. Simply put, when a party seeks to base its case or defence on a document, it is mandatory for that document to be put in evidence before the Court. The onus lies greatly on the defendant to prove all the assertion by real documentary evidence. In the case of Abubakar v. Waziri [2008] All FWLR (Pt 436) 2025 @ 2047, the apex Court held that where a party pleads or leads evidence as to the existence of a document in proof of its case, the original or, in an appropriate case, secondary evidence of it, should be tendered, as the law generally does not allow oral evidence to be led in proof of such document. See also the case of Salini Nig v. Lifewire Industries Ltd & Anor [2019] LPELR-51433(CA)1@36-37, Paras D-D. The defendant even after pleading the purported document evidencing cash payment to Claimant and relying on same in proof of paragraph 11 of the amended statement of defence failed to tender same. Its averment in paragraph 11 of the amended statement of defence are deemed abandoned.

 

26.  I must say that I bear in mind, that DW through whom the document (exhibit C2) was produced and tendered stated while under cross examination on the 9th of June 2022 that some of the payments made to Claimant were by cash deposit  and bank payments. In fact, he stated that he could not tell the Court when either of the bank payments or cash deposit were made.  DW even admitted under cross examination that an employee usually sign to acknowledge any cash payment of salaries which document is in the custody of the Cashier of the defendant. Besides DW having admitted that there are documents showing acknowledgement of cash payment cannot give evidence of same because oral evidence cannot be given of the contents of a document. Thus, his evidence that Claimant was paid some salaries in cash is thus of no evidential value. See; Section 128 of the EA and the case of Gudusu v. Abubakar [2017]LPELR-43007(CA)1@15-16, Para E and Aiki v. Idowu [2006]9 NWLR (Pt. 984)47 @ 65.The pertinent question at this stage is what is the status of exhibit C2?  I have taken a close look at exhibit C2 and I find that it is not reliable and the Court will proceed to explain why. DW admitted under cross examination that he was not the maker of exhibit C2 and was not there when exhibit C2 was made but he knows it was extracted from the record.  In fact, when DW was asked if exhibit C2 comprises of salaries and allowances, DW answered that he is not sure if Claimant’s leave allowance is part of the amount in the said exhibit C2. This clearly shows that DW does not have any knowledge as to the contents of exhibit C2.  The position of the law is clear to the effect that documentary hearsay is not admissible. Documentary hearsay arises when a person who is not privy to a document, who did not witness its preparation neither was he the author or signatory to a document seeks to prove its contents by oral or other secondary evidence. See Section 37 of the EA. Such evidence even where admitted are to be expunged. See the following cases; Salini Nig v. Lifewire Industries Ltd & Anor, supra1@39, Para A and Andrew v. INEC [2018] 9 NWLR (Pt 1625) 507@558.  Exhibit C2 is not admissible or reliable to prove the extent of the defendant’s liability to Claimant. Thus, the defendant in the absence of any other evidence has failed to discharge the onus on it to substantiate its assertion that it has offset its indebtedness to Claimant. In the absence of any other evidence, this Court finds that Claimant has proven his claim to the sum of N7,698,775.33 as arrears of salaries from 2015 to December, 2017. I so find and hold.

 

27. Now, let me address the issue of Claimant’s claim to payment of leave allowance and unremitted pensions which makes up the remaining part of the total sum of N10,500,175.33 claimed in this case. Claimant vide paragraph 11 of the amended statement of facts pleads the particulars of the sum owed to him as leave allowance from the year 2010 to 2017 which according to the table is N700,350.  The defendant vide paragraph 20 of the amended statement of defence denies paragraph 11 and puts the Claimant to the strictest proof. The defendant equally vide paragraph 15 of the amended statement of defence averred that its policy is to the effect that leave allowances are only to be paid upon request and approval of leave. It pleads in support a copy of the defendant’s Policy Manual or document. It averred further in paragraphs 16 and 17 thereof that once leave is approved, the allowance is paid in summation of monthly salaries and that claimant was paid his leave allowances for the year he requested for leave. It continued in paragraphs 18 and 19 that Claimant requested for and was granted approval for leave in 2010, 2011,2013 and 2016 and his leave allowances were paid together with his salaries while Claimant did not make any application for leave in 2012, 2014 2015 and 2017 and therefore not entitled to leave allowance for the said period. Claimant vide paragraphs 5 and 6 of the Reply averred that his letter of employment states that he is entitled to 10% of his annual salary and four weeks leave every year and that leave allowance is not subject to application for leave and denies that his leave allowances were paid in 2010, 2011, 2015 and 2017 thereby putting the defendant to strictest proof. In the case of Olaniyan & Ors v. Unilag & Anor, [1985] LPELR-2565 it was held that just like other contracts, contract of employment’s creation and termination are subject to the general principle of contract. As such where the terms of contract are in writing, parties are bound by the express terms of their contract. The duty of Court in such instance is to interpret the terms of contract of the parties and give effect to it. The Court in interpreting the terms of the contract between the parties must give the words their plain, ordinary and natural meaning where the words used are clear and unambiguous. See also the case of Keystone Bank v. Clark [2020]LPELR-4932(CA)1@24, Para A. In the case of Esset Petroleum Ent. (Nig) Ltd v. Petroleum Equalization Fund (Mgt) Board & Anor [2019] LPELR-47355 (CA)1@ 25-27, Para E, the Court held that where the words used in a contract are clear, the operative words in it should be given their simple and grammatical meaning. I have perused exhibit S, id est the Claimant’s letter of employment and I find that just as averred by Claimant he is entitled to four weeks holiday with 10% of his annual basic salary as leave transportation allowance. The defendant tendered in this case a document titled LEADERSHIP GROUP NEWSPAPERS Limited POLICY STATEMENTS” herein as exhibit C. The defendant did not plead the particular provision of the Policy manual/ document (Exhibit C) it relied on which provides that leave shall be upon application.  However, I have taken the pain to go through exhibit C with the mastery of an eagle eye and I cannot find anything therein supporting the defendant’s claim that leave allowances are only to be paid upon request and approval of leave. The law is on a firma terra that pleadings do not amount and cannot constitute evidence and for averments in pleadings to be useful, evidence must be led on them. See; Mamman & Ors v. Tukura & Ors [2021] LPELR-53297CA; Ismaila v. Lawal [2018] LPELR-47126. That being so, pleadings not supported by evidence are deemed abandoned. See Jatau & Anor v. Santivi [2020] LPELR-49603(CA)1@26, Para C. It is in the light of this that I find that the averments of the defendant in paragraphs 15 and 16 of its amended statement of defence are deemed abandoned.

 

28. I have taken note of the fact that the defendant annexed a copy of a document titled “THE CONTENTS OF THIS MANUAL ARE SUBJECT TO REVIEW AND SUCH REVIEWS MAY BE CONTAINED IN THE INTERNAL MEMOS OF THE COMPANY ISSUED FROM TIME TO TIME” which document is at pages 234 to 238 of the Record. As reasoned supra, the Court has power to look into its Record and make use of a document that may resolve an issue in dispute especially where it is the last resort.  I find at page 235 of the record that the said document provides for leave and provides that Application for leave is subject to the approval of the Company and must be supported by relevant documents. It provides further that intermediate Employees and below are entitled to 21 days annual leave while Managers and above are entitled to 28 days annual leave in addition 10% of their annual basic housing and transport allowance will be provided as leave allowance and this seems to be in line with Claimant’s letter of employment exhibit S which provides for same 10% of the annual basic salary as leave allowance.  From the above, it is clear that leave is subject to application and as such an employee who has not applied for leave cannot be granted leave and by extension cannot be paid leave allowance if he has not gone on leave.  Claimant has not shown that he applied for leave during the period for which he is claiming leave allowance. Although he averred vide paragraph 7 of the Reply to statement of defence that most of his applications to the defendant for leave were refused on the premise that he was holding a key position and the defendant cannot afford his absence. The Claimant has not placed any documentary evidence before this Court to show that his application for leave was refused as alleged. However, the defendant admitted vide paragraph 18 of the amended statement of defence that the Claimant requested for and was granted approval for leave in 2010, 2011, 2013 and 2014 and his leave allowances were paid together with his salaries. Thus, the onus is now on the defendant who is alleging that Claimant’s leave allowance for years 2010, 2011, 2013 and 2014 were paid to prove same by placing before the Court the document which evinces the payment There is no evidence before this Court to show that the defendant in line with its assertions in paragraph 18 of the amended statement of defence have paid Claimant’s leave allowances for the years 2010, 2011, 2013 and 2014. In fact, DW while under cross examination could not even confirm if the Claimant’s leave allowance was computed in the sums computed in exhibit C2 which this Court has already held to be unreliable for reasons earlier given. Also, as reasoned supra DW has admitted the defendant’s indebtedness to the Claimant which admission is against the defendant’s case. Claimant in this case admitted under cross examination that leave allowances are either paid to him in cash or through his bank account and his bank account shows that he was not paid. The defendant has to show that Claimant’s leave allowance was paid for the said years 2010, 2011, 2013 and 2014 either by cash or through the bank account which it has not done. The defendant did not specifically controvert the sums claimed by Claimant as leave allowance for those years. It is in the light of this that I find that Claimant is entitled to be paid his leave allowance for the years 2010, 2011, 2013 and 2014 which years the defendant admitted he applied for and was granted leave but was not able to prove he was paid the leave allowance. Thus, Claimant is entitled to be paid the sum of N220,900 which is the summation of the sums of N28,800, N32,400, N69,700 and the sum of N90,000 which represent the leave allowances for the years 2010 2011,2013 and 2014 which has not been shown by the defendant to have been paid to Claimant as held supra. I therefore, find that Claimant’s entitlement to leave allowance is only to the extent that he is entitled to the sum of N220, 900 which is his leave allowance for the years 2010, 2011, 2013 and 2014.

 

29. Next, is the part of the Claim that relates to unremitted pension. By Claimant’s averment and breakdown in paragraph 11 of the amended statement of facts shows that Claimant’s unremitted pension from the year 2010 to 2017 is N2,101,050. The defendant vide paragraph 20 of the amended statement of defence as reasoned supra merely denied facts averred in paragraph 11 of the amended statement of facts. DW was asked under cross examination when last the defendant remitted the Claimant’s pension to his Pension Fund Administrator to which he answered he cannot remember. However, Claimant who wants the Court to believe that there are unremitted pension failed to bring the statement of account of his Retirement Savings Account (RSA). In fact, this fact was admitted by Claimant under cross examination on the 11th day of May, 2022 thus;

 

Q: Do you have before this Court your RSA statement?

A: No, I don’t have it in Court.

The import of the above is that Claimant has not placed before this Court his RSA statement of account. In the absence of this the Court cannot find any evidence to show that Claimant’s pension has not been remitted. In the absence of any evidence. I cannot find anything to show that Claimant’s pension contribution has not been remitted. It is in view of this that I find that Claimant has just not justified the sum of N2,101,050 claimed as unremitted pensions.

30. Claimant vide relief one claims the sum of N10, 500,175.33 representing his final entitlements owed. Claimant as reasoned supra has shown his entitlement to the sum of N7,698,775.33 as arrears of salaries from 2015 to December, 2017. It is equally shown that Claimant is entitled to the sum of N220, 900 as leave allowance for 2010, 2011, 2013 and 2014. Accordingly, Claimant is entitled to be paid the sum of N 7,919,675.33 representing the summation of his arrears of salaries from 2015 to 2017 and leave allowances for 2010, 2011, 2013 and 2014.  The point must be made that in law when it comes to award of claims by parties, what a Court lacks the power to do is to grant more than what was claimed by a party but it has the plenitude of power to grant less than what was claimed base on what was proved before it, being not a charitable Institution or a 'Father Christmas'. See; Tower Securities & Investment Co Ltd v. Coronation Merchant Bank Ltd [2020] LPELR-44545(CA)1@45, Para A; SCOA (Nig) Plc V. TAAN & Ors [2018] LPELR -44545(CA)1@45, Para A; Nwachukwu V. Egbuche [1990] 3 NWLR (Pt. 139) 435. It is in the light of the above that I find that Claimant is entitled to be paid the sum of N 7,919,675.33 which the Claimant has proven to be entitled to out of the total sum of N10, 500,175.33. Thus, Relief one succeeds only to the extent that Claimant is entitled to N 7,919,675.33 representing his arrears of salaries and unpaid leave allowances for the years 2010, 2011, 2013 and 2014.

 

31. Claimant vide relief 2 is asking this Court for 15 % interest from the date of judgment until the judgment is fully liquidated. This is clearly a post judgment interest. It is trite that post judgment interest may be awarded even where it was not pleaded because it is statutory and is at the discretion of the Court. See the case of Ifemesia v. Ecobank [2018] LPELR-46589 (CA)1@60-61, Para A-A. However, the Rules of Court regulates the discretion of the Court by setting the rate or percentage at which such post judgment interest may be awarded. In the case of Bolanle v. Access Bank [2015] LPELR-40994(CA)26-28, Para B, the Court of Appeal held that the power of a Court to grant post judgment interest is statutory as it derives its root from the Rules of Court and the National Industrial Court as the trial Court in that case derives such power from the National Industrial Court Rules. This Court is empowered by the provisions of Order 47 Rule 7 of the Rules of this Court as captured in Bolanle’s case supra, to grant post judgment interest at a rate not less than 10% per annum. I therefore exercise my discretion in favour of the claimant by awarding 10% interest on the judgment sum.

 

32. Relief 3 is respecting cost of action. The cost herein was not assessed by Claimant thereby passing the burden of assessment to the Court. Claimant in this case tendered exhibit S5 which is receipt of payment of the sum of N500,000 for the prosecution of this case. It is the law that cost is at the discretion of Court which must be done judiciously and judicially. See the case of Mekwunye v. Emirates Airlines [2019] LPELR 46553 (SC)1@67-73, Para E; First Bank v. Oronsaye [2019] LPELR 47205 (CA). It is settled law by Order 55 Rule (1) of the National Industrial Court of Nigeria Rules, 2017 that cost is awarded at the discretion of the Court. Claimant in this case has succeeded in the most part of his monetary claims. It is in the light of this that I exercise my discretion in his favour. In view of the number of appearances had and the number of processes filed, I assess the cost of this action at the sum of N250,000.

 

33. For the avoidance of doubt and the reasons earlier given, I order as follows;

 

1.      Claimant is entitled to be paid N 7,919,675.33 representing his arrears of salaries and unpaid leave allowances for the years 2010, 2011, 2013 and 2014.

2.      Claimant is entitled to the sum of N250,000 as cost of action.

3.      The judgment sum is to be paid within 30days of this judgment failing which it is to attract 10% simple interest per annum.

 

Judgment is accordingly entered.

 

                                           

                                                                               Hon. Justice Oyewumi O.O

                                                                                     Presiding Judge